AMENDMENT NO. 1
Dated as of October 17, 1995
to
AGREEMENT AND PLAN OF MERGER
Dated as of September 8, 1995
THIS AMENDMENT NO. 1 ("Amendment") is executed as of the 17th
day of October, 1995, by and among Financial Benefit Group, Inc., a Delaware
corporation, AmVestors Financial Corporation, a Kansas corporation
("Parent"), and AmVestors Acquisition Subsidiary, Inc., a Delaware
corporation and a wholly-owned subsidiary of Parent.
WITNESSETH:
WHEREAS, the parties hereto have entered into that certain
Agreement and Plan of Merger dated as of September 8, 1995 (the "Merger
Agreement"); and
WHEREAS, the parties desire to amend the Merger Agreement in
certain limited respects.
NOW, THEREFORE, for good and valuable consideration, the
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
SECTION 1. AMENDMENT OF THE MERGER AGREEMENT. The Merger
Agreement is, effective as of the date hereof, hereby amended as follows:
(a) Section 1.2(b)(iii) of the Merger Agreement is amended to
read in its entirety as follows:
" (iii) each Share outstanding immediately prior to the Effective
Time shall, except as otherwise provided in Section 1.2(b)(i) or except as
provided in Section 1.4 with respect to Dissenting Shares (as defined
herein), if any, be converted into the right to receive (X) the Cash Portion
Per Share (as defined in Section 1.2(d)), plus (Y) a Parent Warrant Fraction
(as defined in Section 1.2(e)) of a Parent Warrant (as defined in Section
1.2(e)) as determined pursuant to Section 1.2(e)), plus (Z) that number of
shares of common stock, no par value, of Parent (the "Parent Stock") equal to
$5.00 minus the Cash Portion Per Share ("Stock Portion Per Share"), divided
by the Parent Stock Price (as defined below), if the Parent Stock Price is
greater than or equal to $10.50 and less than or equal to $13.25; that number
of shares of Parent Stock equal to the Stock Portion Per Share divided by
$10.50, if the Parent Stock Price is less than $10.50; and that number of
shares equal to the Stock Portion Per Share divided by $13.25 if the Parent
Stock Price is greater than $13.25, in any such case carried to the fourth
decimal place (such amount of stock as so determined being herein referred to
as the "Stock Per Share Amount"). If the Parent Stock Price is greater than
$14.50 or less than $9.50 this Agreement may be terminated in accordance with
the provisions of Section 9.1(h) hereto."
(b) Section 1.2(d) of the Merger Agreement is amended to read
in its entirety as follows:
" (d)The "Cash Portion Per Share" shall be equal to the amount
obtained by dividing (i) $10 million (or such greater
amount not exceeding $15 million that Parent may determine in its sole
discretion) minus (x) any amounts payable to holders of FBG Options (as
defined in Section 3.7(b)) pursuant to Sections 1.5(c), 1.5(d) and 1.5(e),
and minus (y) an amount equal to $5.31 multiplied by the number of Dissenting
Shares, by (ii) the number of Shares outstanding immediately prior to the
Effective Time minus the Dissenting Shares (as defined in Section 1.4).";
(c) Section 1.4 of the Merger Agreement is amended to read in
its entirety as follows:
SECTION 1.4. DISSENTING
SHARES. Notwithstanding anything in this Agreement to the contrary,
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Shares which are held by stockholders who have not voted
such Shares in favor of the Merger and who shall have delivered a written
demand for appraisal of such Shares in the manner provided in the DGCL and
who shall not have withdrawn such objection or waived such rights prior to
the Closing Date (the "Dissenting Shares") shall not be converted into or be
exchangeable for the right to receive the Merger Consideration provided in
Section 1.2 hereof, unless and until such holder shall have failed to perfect
or shall have effectively withdrawn or lost his right to appraisal and
payment under the DGCL. If such holder shall have so failed to perfect or
shall have effectively withdrawn or lost such right, his Shares shall
thereupon be deemed to have been converted into and to have become
exchangeable for, at the Effective Time, the right to receive the Merger
Consideration provided for in Section 1.2 hereof, without any interest
thereon.";
(d) Section 8.2(n) of the Merger Agreement is amended to read
in its entirety as follows:
" (n) OPTION PLAN AMENDMENT. The
stockholders of Parent shall have approved an amendment to the 1989 AmVestors
Financial Corporation
Non-Qualified Stock Option Plan to increase the number of shares issuable
under such plan by at least 275,000 shares."; and
(e) Section 8.2 of the Merger Agreement is amended by adding
thereto a new subsection (p) which shall read in its entirety as follows:
" (p) DISSENTING SHARES. Dissenting Shares
shall not constitute more than 10% of the outstanding Shares of Company A
Stock on the Closing Date."
SECTION 2. REFERENCE TO AND EFFECT ON THE MERGER AGREEMENT.
Upon the effectiveness of this Amendment, each reference in the Merger
Agreement to "this Agreement", "hereunder", "hereof", "herein" or words of
like import shall mean and be, and any references to the Merger Agreement in
any other document, instrument or agreement executed and/or delivered in
connection with the Merger Agreement shall mean and be, a reference to the
Merger Agreement as amended hereby.
SECTION 3. EFFECT OF THIS AMENDMENT. Except as otherwise
specifically amended herein, the Merger Agreement, as modified by this
Amendment, remains in full force and effect.
SECTION 4. GOVERNING LAW. This Amendment shall be governed by
and construed in accordance with the internal laws and not the conflicts of
laws provisions of the State of Kansas.
SECTION 5. COUNTERPARTS: EFFECTIVENESS. This Amendment may be
signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the
same instrument.
SECTION 6. DEFINITIONS. Any capitalized terms used but not
defined herein shall have the meaning ascribed thereto in the Merger
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective authorized officers as of
the day and year first above written.
FINANCIAL BENEFIT GROUP, INC.
By: /c/ Donna J. Rubertone
Title: Executive Vice President
AMVESTORS FINANCIAL CORPORATION
By: /c/ Ralph W. Laster, Jr.
Title: Chairman and CEO
AMVESTORS ACQUISITION SUBSIDIARY, INC.
By: /c/ Mark V. Heitz
Title: President
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